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Federal prosecution of Zimmerman would be difficult

George Zimmerman leaves court with his family after Zimmerman's not guilty verdict was read in Seminole Circuit Court in Sanford, Fla. on Saturday, July 13, 2013. (Joe Burbank, AP Pool)

WASHINGTON — The Justice Department said Sunday it is looking into the shooting death of Trayvon Martin to determine whether federal prosecutors will file criminal civil-rights charges now that George Zimmerman has been acquitted in the state case.

The department opened an investigation into Martin's death last year but stepped aside to allow the state prosecution to proceed.

But legal experts warned it's never easy getting convictions in such high-profile prosecutions.

The Justice Department has a host of criminal civil-rights laws at its disposal and has made such cases in the past.

Photos: George Zimmerman Verdict

Among them: the federal prosecution of a group of Los Angeles police officers after they were acquitted in state court of the brutal beating of Rodney King in 1991, which sparked riots in that city. Two of the four officers were eventually convicted by a federal jury of violating King's civil rights under "color of law" — that is, beating him up in their capacity as cops. But that law applies only to those in law enforcement, and Zimmerman is a civilian.

It's possible the Justice Department might consider using a different type of civil-rights law: the federal hate-crime statute. As in the King case, the double-jeopardy clause of the U.S. Constitution does not prohibit such a federal prosecution after Zimmerman's state acquittal.

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NAACP president Benjamin Todd Jealous started a petition Sunday calling for the Justice Department to do just that.

Jealous said the civil rights group was "not done demanding justice for Trayvon Martin."

The group's public pressure on the Justice Department puts Attorney General Eric Holder Jr., the nation's first African-American attorney general, in the difficult position of making a daunting decision on a controversial case that has riveted the nation's attention and ignited renewed debate about racial profiling.

"The Justice Department would face significant challenges in bringing a federal civil-rights case against Mr. Zimmerman," Alan Vinegrad, the former U.S. attorney in the Eastern District of New York, said Sunday. "There are several factual and legal hurdles that federal prosecutors would have to overcome: They'd have to show not only that the attack was unjustified, but that Mr. Zimmerman attacked Mr. Martin because of his race and because he was using a public facility, the street."

As to the last element, the confrontation between Zimmerman and the shooting victim occurred in a gated community, which may not fit the legal definition of a public facility.

Legal experts also said the verdict itself would be a formidable challenge for Holder because Florida jurors found Zimmerman not guilty of both second-degree murder and manslaughter in Martin's death.

"If the state jury had been persuaded beyond a reasonable doubt that Zimmerman caused bodily harm to Trayvon Martin because of Martin's race, it would have almost certainly convicted Zimmerman of second-degree murder, which requires proof of 'ill-will' or 'malice,' " said Scott Srebnick, a prominent federal criminal defense attorney in Miami. "So, to bring a federal civil-rights prosecution against Zimmerman, the attorney general would essentially be second-guessing the state jury's verdict as opposed to vindicating a different or broader federal interest.

"I find it doubtful that the attorney general will pursue a prosecution on a civil-rights theory simply out of displeasure with the state jury's verdict," Srebnick said.

Brian Tannebaum, a Miami defense attorney and past president of the Florida Association of Criminal Defense Lawyers, agreed.

"People are comparing this case to Rodney King, where there was a federal prosecution after a state acquittal, but the difference there was there were witnesses, specifically the video everyone still remembers," Tannebaum said, referring to a videotape of the police beating.

"Zimmerman was a failed prosecution from the beginning — where the only witness (Zimmerman) had the right to remain silent (by not testifying) — and I don't think the federal government will try again," Tannebaum said.

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